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[001] the same D., while he was in seisin thereof, vouched the aforesaid B. to warranty,
[002] who afterwards came and warranted that land to him. And have there etc.’ If he
[003] does not come on that day, let proceedings be taken against him on the default, as
[004] above. When he does come he either warrants at once or says that he ought not to
[005] warrant, because he [B.] holds nothing of him and does him neither service nor
[006] homage. [Or] though he would be bound1 to warrant him, that the said B., defaulted
[007] when he could have answered to the assise had he come on his day, so that the assise
[008] was taken by his default, by which he lost his exceptions and defences against the
[009] assise, for which B. ought to blame himself. If the same A. freely warrants B. and
[010] vouches over another warrantor, the same answer may be made to him [A.] as was
[011] made to B. Suppose that the warrantor, after making default on the first day,2
[012] warrants the tenant de facto on another day, before the assise taken [but] after it
[013] has once been decided that it is to be taken, by which warranty it is established that
[014] if the tenant loses the warrantor would be bound to give him escambium, and on
[015] that day he, the warrantor, vouches another warrantor, and the assise is taken on
[016] the same day, by which the demandant recovers against the tenant. The second
[017] warrantor was immediately summoned to warrant the first, as in the roll of Trinity
[018] term in the same year, on which day he did not come, after he essoined himself, so
[019] that the sheriff was ordered to have his body.3 When the second warrantor came,
[020] [in] the Michaelmas term next following in the same year,4 the first warrantor
[021] claimed escambium against him for the land the tenant lost to the demandant by the
[022] assise of mortdancestor, as to which the same tenant had vouched him, the first
[023] warrantor, to warranty against the demandant, who had warranted him and vouched
[024] the second warrantor against the demandant. ‘And he came and was unwilling to
[025] answer him or his writ unless the court should so decide, because the first warrantor
[026] had warranted the land to the tenant and afterwards by his own default lost by the
[027] assise, without vouching the second warrantor to warranty while he was in seisin,
[028] and since the assise was taken by his default, so that the tenant lost and is now out of
[029] seisin, which the first warrantor acknowledged by his attorney, it was adjudged that
[030] the second warrantor need not answer and that the first be in mercy.’5 This case may
[031] be



Notes

1. ‘teneretur,’ all MSS

2. C.R.R., x, 201 (Mich. 5-6): the case of Aluric Huse infra 265

3. C.R.R., x, 285 (Trin. 6)

4. B.N.B., no. 1559 (Mich. 6-7); no roll extant

5. Quoted from B.N.B., no. 1559


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